HKSAR v. Chan Chun Sing
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DCCC1013/ 2009 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO.1013 OF 2009 ---------------------------
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Reasons for Sentence 1.The defendant faces one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. It is alleged that the defendant on 31st July 2009, inside Room V1 at “Club PP Disco Karaoke Night Club”, UG2 Floor, Chinachem Golden Plaza, No.77 Mody Road, Tsim Sha Tsui East, Kowloon, unlawfully trafficked in a dangerous drug, namely 25.05 grammes of a powder containing 15.12 grammes of ketamine. 2.The defendant pleaded guilty, admitted to the summary of facts and was duly convicted. Summary of Facts 3.At around 1:48am on 31st July 2009, Singh Jara (“PW2”), the security guard of Club PP Disco Karaoke Night Club located at the charge address saw the defendant holding a plastic bag and acting suspiciously outside the toilet of the disco through the closed circuit television. PW2 suspected that the defendant was selling dangerous drugs and immediately informed the licensee of the disco Mr. Tang (“PW1”). 4.PW1 and 2 intercepted the defendant outside the toilet shortly after that and brought the defendant to Room V1 of the disco. PW1 then made a report to the police. Police officers arrived at the disco, searched the defendant and found a plastic bag containing 15 plastic bags with a total of 25.05 grammes of powder inside the left front pocket of the defendant’s trousers. The defendant was arrested and admitted under caution that he intended to share the ketamine with his friends while he and his friends were hanging out at the disco. 5.Chemical analysis of the powder found on the defendant by the Government Chemist reveals the narcotic contents as stated in the charge. Previous convictions 6.The defendant is of clear record. Mitigation 7.The defendant is 21 years old. Through the antecedent statement and his counsel he admitted that he had been a drug addict for about 2 odd years before the present offence. The defendant comes from a small family, his parents and sisters are in court to show support. 8.As stated in the facts, according to what the defendant said under caution, he took the dangerous drugs trying to enter the disco in order to share at least part of the drugs together with his friends. Mr. Ching for the defendant did not proceed to ask this court to sentence on the basis that some of the dangerous drugs were for the defendant’s self-consumption. Mr. Ching is a very experienced counsel and I trust that the reason he did not so proceed is because he has no instructions to so argue. It is put forward in mitigation that the defendant and his friends did purchase part of the drugs, but the defendant was the person responsible for taking the drugs into the disco to have some fun. 9.The defendant was unemployed at the time of arrest. He used to work as a transportation worker on a part time basis earning $50 per hour. When there was sufficient work, he would be earning about $8,000 to $10,000 per month. Before that he worked for a courier company TNT for about 1 odd year. When he did work, the defendant would contribute about $3,000 to $4,000 per month to his family. 10.Due to health of the defendant’s parents, evidenced by the submitted documents, shortly before the defendant was arrested, he moved to live with his parents in order to take care of them. 11.Letters written by the defendant himself, his parents and his sisters are submitted. The defendant in his letter explained that he is remorseful, that he has low self-esteem and tried to escape daily life by taking drugs under the influence of his friends. He is sorry that he caused trouble to his family members. 12.Mr. Chan Kam Hung is the father of the defendant, his letter says that the defendant is not of bad nature, that after the defendant was laid off he tried to find work. The defendant had had bad influence, but he is more mature now, and had promised to keep away from drugs and turn a new leaf. 13.Madam Chan Wai Chun is mother of the defendant. Her letter tells the court how the defendant had worked as a volunteer, how she visited her son many times and see that he is remorseful and had learned a lesson, promised to stay away from dangerous drugs. The defendant has her support as well as from the rest of his family. 14.Ms. Chan Siu Ying is the defendant’s elder sister. She tells the court that the defendant is a kind person and respectful to elders. The defendant takes his work seriously be it paid or unpaid. The defendant is immature, was influenced by bad peers becoming a drug addict. It is her view that the defendant is young and naïve, but he had shown remorse and had promised not to re-offend. 15.Ms. Chan Wun Chi is another older sister of the defendant. She basically echoes what was said in Ms. Chan Siu Ying’s letter. 16.In conclusion, Mr. Ching submitted that the defendant pleaded guilty, school report shows that all along before he became drug addict, the defendant had been living a decent life, working as a manual worker in Hong Kong. Mr. Ching confirmed that he did explain about the sentencing guidelines in the case of Hii Siew Cheng (許守城), and the defendant fully understands the sentencing guidelines. Mr. Ching urges this court to call for a background report before sentence, while realizing that in light of the clear sentencing guidelines the room for discretion is rather slim. 17.Mr. Ching also told this court the other reason he has instructions to invite the court to call for a background report is so that the family may visit the defendant in Lai Chi Kok in the next few days over the Chinese New Year. Sentencing tariff 18.For trafficking in ketamine, the sentencing tariff in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 applies:
19.In our present case, unfortunately the defendant himself is one of those young people. As someone of a similar age group to those frequenting the discos, the possibility of added peer pressure brought to bear upon the other youngsters by the defendant himself must not be overlooked. Application of the tariff 20.I have given careful consideration to the very helpful mitigation put forward on behalf of the defendant by Mr. Ching. I can see that the defendant appears to be someone who cares about his family. I have read the letters written by the defendant’s parents and his sisters and it is obvious that they love the defendant very much. Unfortunately, the care and love they now show is probably slightly late. Had they spent more time to communicate and share with the defendant, he might not have chosen the path that he has taken. The family support and the occasional taking part in voluntary activities are not strong enough mitigating factors to cause me to deviate from the sentencing guidelines. There are no further mitigating factors that would require me to grant the defendant further reductions in sentence. 21.I was invited to get a background report pending the defendant’s sentencing so that I can obtain further information and perhaps also to allow the family to visit the defendant in Lai Chi Kook detention centre during Chinese New Year. In relation to further background information, I think all the pertinent matters have been covered by counsel in mitigation and a further background report would serve no useful purpose. As for the second reason, I do not think that it should be a consideration in deciding whether to order a background report or not. 22.The amount of ketamine involved in the present case is 15.12 grammes. An application of the guidelines would lead to a starting point of 51 months’ imprisonment. Granting the defendant the full 1/3 discount for his guilty plea would reduce the sentence to that of 34 months’ imprisonment. 23.The defendant is therefore sentenced to 34 months’ imprisonment.
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